Utah Gay Marriage Case Could Make It Back to Supreme Court After Appeal

The issue was put in limbo today when the Supreme Court halted gay weddings that have been taking place in Utah since a lower court ruled in December that denying marriage to gays violated their constitutional rights. Today, Supreme Court made it clear that the district court decision that struck the state's ban on gay marriage is now stayed, "pending final disposition of the appeal."

Depending upon how that appeals court rules, it could be several months to a year until the issue gets back to the Supreme Court, at least one expert said.

The federal appeals court has already set an expedited schedule to hear Utah's plea to permanently halt gay weddings. The court has ordered that briefing be complete by February.

"This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over," says James Magleby, one of the attorneys representing the same sex couples in the case. "Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally."

The Supreme Court, as is its custom, gave no explanation for its order today. There were no noted dissents. On one hand, there could be justices who think that Utah might prevail on the issue eventually. But on the other hand, the stay might simply indicate that the justices felt the most prudent course was to stop the marriages for now.

"In issuing a stay, the Supreme Court has essentially 'frozen' the order of the federal district court until the 10th Circuit Court of Appeals rules on the merits of the case," says Elizabeth Cooper of Fordham Law " That is not likely to happen until spring 2014 . The Supreme Court gave no reasoning for its action, but in some ways acted in keeping with the Court's tradition: when there is a lot at stake, moving slowly is the best approach."

Cooper says the 10th Circuit will have to rule both on the constitutionality of the state's ban on marriages by same-sex couples, as well as the validity of the hundreds of marriages entered into by same-sex couples in the state since the district court's ruling last month. In their briefings before the court, both sides relied on the Supreme Court's recent decision, United States v. Windsor. That decision struck part of a federal law that denied federal benefits to couples legally married in their state. But Windsor left open the question of whether states could bar same-sex couples from civil marriage.

Rick Hasen, a Supreme Court expert who writes the popular Election Law Blog, thinks the high court will answer that question sooner rather than later. He rejects the notion that the court may want to let the issue percolate for a length of time in the lower courts before wading in.

"If the 10th Circuit decides to continue the stay, then things will ultimately get to the Supreme Court in a longer time frame, with a decision as soon as this year but possibly next year, " Hasen writes. " If the 10th Circuit rules in favor of the plaintiffs and lifts the stay, the court will have to confront what to do then, and that could be as soon as a matter of months."

Hasen's bottom line? "We should expect within the next year or two for the Supreme Court to issue a ruling on the merits of constitutionality of a ban on same sex marriage. Not decades, but probably a year or two."